Canada: Ontario, Canada Superior Court Deems Employee's Pregnancy An Important Factor In Assessing Reasonable Notice Period For Dismissal

In Nahum v. Honeycomb Hospitality Inc., 2021 ONSC 1455, the Ontario Superior Court determined that an employee's pregnancy should impact the calculation of her reasonable notice period for dismissal. The court awarded the employee five months' reasonable notice after she had worked for the employer for four and a half months.

Background

The employee held a human resources role as the employer's Director of People and Culture with annual remuneration of $80,000, plus benefits. She was 28 years old and five months pregnant when, four and a half months after beginning work for the employer, her employment was terminated without cause. The employee had signed an employment agreement, but the parties agreed that the termination provisions in the agreement were not enforceable. With the exception of a two-month period immediately following the birth of her baby, the employee consistently sought employment since her dismissal, but was unable to secure a new position.

The employee argued that she was entitled to eight months' notice; the employer argued that two months was generous. Both parties relied on Bardal v. Globe & Mail Ltd, 24 D.L.R. (2d) 140 (Ont. H.C.), the seminal 1960 decision that established that the following factors should be considered in determining reasonable notice: the character of the employment; the length of service; the employee's age; and the availability of similar employment, having regard to the employee's experience, training, and qualification. The employee sought to add her pregnancy to the list of factors that should be considered.

Decision

The court concluded that the character of the employee's position was that of mid-level management. It noted that the length of her service to the employer was short, and her age at termination should not be an impediment to obtaining a similar position. Further, the court concluded that the employee had the education and skills required for many available positions.

The court then considered whether the employee's pregnancy ought to be considered in determining the reasonable notice period. The court reviewed past cases in which the question was considered; it noted that one court did not require evidence to find that the plaintiff's pregnancy did not enhance her immediate employability, and another court found that pregnancy complications are a "Bardal-type factor" that should be considered in determining what constitutes reasonable notice.

Noting that the purpose of reasonable notice is to provide a reasonable period of time for a person dismissed from their employment to obtain a new position, the court stated that in most cases, pregnancy is likely to increase the amount of time it will take a person to find new employment: an employer seeking to fill a position is likely to have a bona fide immediate need for someone in the role and many employers would not be interested in a new employee who would soon be absent because they would require a lengthy leave. The court did not agree with the employer's submission that an employer that prefers a candidate who is not pregnant is necessarily violating human rights legislation.

The court concluded that it did not require evidence to reach the conclusion that pregnant people face additional challenges when seeking employment, "because it is a fact so notorious or generally accepted as not to be the subject of debate among reasonable persons." (para. 46) It emphasized, however, that pregnancy at the date of dismissal should not automatically lengthen the notice period because pregnancy may not always impede a job search; like all factors relevant to the notice period, pregnancy at the time of dismissal is one of the factors to be considered, and it should factor into the reasonable notice period if it is reasonably likely to negatively impact their ability to find alternative employment.

The court concluded that it was unreasonable to expect the employee would be able to obtain new employment in the two-month period proposed by the employer given that at the time of her dismissal she was five months pregnant, and taking into consideration the competitive nature of the job market. In the court's view, the employee's pregnancy was an important factor in assessing reasonable notice, along with the character of her employment, and her brief length of service. Weighing all the relevant factors together, the court concluded that a reasonable notice period of five months was appropriate.

Bottom Line for Employers

Nahum v. Honeycomb Hospitality puts employers on notice that courts may not limit themselves to the Bardal factors when determining an employee's reasonable notice period. An employee's pregnancy at the date of dismissal is a factor that a court may consider, provided the pregnancy is reasonably likely to impact negatively the employee's ability to find alternative employment.

Originally Published by Littler Mendelson, March 2021

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